FIRST SECTION

Application no. 8067/12 Davor LONIĆ against Croatia lodged on 18 January 2012

STATEMENT OF FACTS

The applicant, Mr Davor Lonić , is a Croatian national, who was born in 1956 and is currently serving a prison term in Lepoglava State Prison. He is represented before the Court by Ms V. Drenški Lasan , a lawyer practising in Zagreb.

The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1. Criminal proceedings against the applicant

On 6 July 2009 the Zadar County State Attorney ’ s Office ( Županijsko državno odvjetništvo u Zadru ; hereinafter: the “State Attorney ’ s Office”) indicted the applicant in the Zadar County Court ( Županijski sud u Zadru ) on charges of several counts of rape and sexual abuse of a child.

On 23 April 2010 the Zadar County Court found the applicant guilty as charged and sentenced him to fourteen years ’ imprisonment.

On 28 May 2010 the applicant lodged an appeal against the first-instance judgment before the Supreme Court ( Vrhovni sud Republike Hrvatske ) challenging factual and legal grounds for his conviction and sentence and alleging numerous procedural flaws in the trial. He also asked to be invited to the appeal hearing.

During the appeal proceedings the case file was forwarded to the State Attorney ’ s Office of the Republic of Croatia ( Državno odvjetništvo Republike Hrvatske ), which lodged its reasoned opinion asking that the appeal be dismissed. This submission was never forwarded to the defence.

On 12 May 2011 the Supreme Court, in the absence of the applicant, dismissed the appeal as ill-founded, reversing only the legal classification of the cumulative offences of rape and sexual abuse to one continuous act of sexual abuse of a child.

On 4 July 2011 the applicant lodged a constitutional complaint with the Constitutional Court ( Ustavni sud Republike Hrvatske ), complaining, inter alia , that during the appeal proceedings the submission of the State Attorney ’ s Office of the Republic of Croatia had never been communicated to the defence and that he had not been provided an opportunity to be present at the appeal hearing.

On 10 November 2011 the Constitutional Court dismissed the applicant ’ s constitutional complaint as ill-founded.

The decision of the Constitutional Court was served on the applicant ’ s representative on 23 November 2011.

2. Conditions of the applicant ’ s detention

During the criminal proceedings against him in the Zadar County Court the applicant was detained in Zadar Prison ( Zatvor u Zadru ).

On 10 September 2010, due to a problem of overcrowdings in Zadar Prison, the applicant was transferred to Pula Prison ( Zatvor u Puli ).

During the transfer the applicant was allegedly threatened with being shot and ill-treated by the prison guards, and upon his admission to Pula Prison he was not provided with necessary medical assistance although he had problems with his heart. In Pula Prison he was placed in a cell measuring 22 square metres with seven other persons.

On 29 September 2010 the applicant complained to the Prison Administration of the Ministry of Justice ( Ministarstvo pravosuđa Uprava za zatvorski sustav ), head of Pula Prison, and to the sentence-execution judge of the Pula County Court ( Županijski sud u Puli ) about the alleged ill-treatment during his transfer and admission to Pula Prison and about the conditions of his detention in that prison.

On 28 October 2010 the Pula County Court obtained a report from Pula Prison concerning the conditions of the applicant ’ s detention. According to the report, Pula Prison had no information about the applicant ’ s transfer which had been organised by Zadar Prison administration. As to the admission to Pula Prison, it was true that the applicant had not been examined by a doctor on the day of his admission but only the next morning, and that he had not been provided with a therapy during the weekend of his admission. However, Pula Prison had been only later provided with the applicant ’ s medical documentation so they had not known about his medical condition and he had never complained about any health problems. Pula Prison also reported that the applicant was placed in a cell measuring approximately 22 square metres with seven other persons. According to the report, that was contrary to the required standards but the prison was in any event overcrowded so it could not be changed.

On 17 November 2010 the President of the Pula County Court informed the applicant ’ s representative by a letter that his complaint was forwarded to the Zadar County Court because the proceedings were pending before that court.

On 26 November 2010 the Zadar County Court requested the Prison Administration of the Ministry of Justice to transfer the applicant back to Zadar Prison as soon as practicable.

On 9 December 2010 the Prison Administration of the Ministry of Justice informed the applicant ’ s representative by a letter that they considered the applicant ’ s complaints ill-founded in any respect.

On 24 January 2011 the applicant again asked the Prison Administration of the Ministry of Justice and head of Pula Prison to be transferred to Zadar Prison.

On 28 January 2011 the Prison Administration of the Ministry of Justice informed the applicant that it was not possible to transfer him to any other prison because of the problem of overcrowdings.

On 2 April 2011 the applicant complained to the Ombudsman ( Pučki pravobranitelj ) about the conditions of his detention, and the Ombudsman requested the Prison Administration of the Ministry of Justice to inform him about the circumstances of the case.

On 26 June 2011 the Ombudsman expressed his concerns to the Prison Administration of the Ministry of Justice concerning the applicant ’ s transfer to Pula Prison from Zadar Prison, since the relevant information showed that Pula Prison was more overcrowded than Zadar Prison. On 24 August 2011 the Ombudsman informed the applicant that there was a problem of overcrowdings in prisons and that nothing further could be done concerning his complaints.

In the meantime, the applicant complained to the Constitutional Court about the conditions of his detention in his constitutional complaint of 4 July 2011, by which he challenged the fairness of the criminal proceedings against him (see the relevant facts above).

On 25 August 2011 the applicant was transferred from Pula Prison to Zagreb Prison ( Zatvor u Zagrebu ) where he started to serve his prison sentence.

On 10 November 2011, when dismissing the applicant ’ s constitutional complaint about the lack of fairness of the criminal proceedings, the Constitutional Court declared the applicant ’ s complaint about the conditions of his detention in Pula Prison inadmissible since at that moment he was no longer held in Pula Prison.

COMPLAINTS

The applicant complains, under Article 3 of the Convention, about the alleged ill-treatment during his transfer and admission to Pula Prison, and about the inadequate conditions of his detention in that prison.

He also complains, under Article 6 § 1 of the Convention, that the submission of the State Attorney ’ s Office of the Republic of Croatia was never forwarded to the defence.

The applicant further complains, under Article 6 §§ 1 and 3 (c) of the Convention, about his absence from the appeal hearing.

Lastly, he complains, under Article 13 of the Convention, that he did not have an effective remedy concerning the conditions of his detention.

QUESTIONS TO THE PARTIES

1. Have the conditions of the applicant ’ s detention in Pula Prison, in view of his transfer and admission to that Prison, the size of his cell, the number of inmates placed in the same cell at the material time or any other condition amounted specifically or cumulatively to inhuman or degrading treatment in breach of Article 3 of the Convention (see Ananyev and Others v. Russia , nos. 42525/07 and 60800/08, 10 January 2012)?

In that regard, the Government are required to provide detailed information about the conditions in which the applicant has been transferred, admitted and detained, including information about the size of each of the applicant ’ s dormitories and their state of repair, access to drinking water, access to toilet and washing facilities, access to natural light and fresh air, hygiene, food, clothing, heating, ventilation, outdoor activities, opportunity to work and educational and leisure facilities.

2. Did the applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 § 1 of the Convention? In particular, was the principle of equality of arms observed as regards the submissions lodged by the Deputy State Attorney of the Republic of Croatia before the Supreme Court?

3. Was the applicant ’ s absence from the hearing held before the Supreme Court in compliance with the requirements under Article 6 §§ 1 and 3 (c) of the Convention?

4. Did the applicant have at his disposal an effective domestic remedy for his Article 3 of the Convention complaint concerning the conditions of his detention, as required by Article 13 of the Convention?

The Government are requested to submit two copies of the entire case file from the domestic criminal proceedings against the applicant.

The Government are also required to submit all relevant materials concerning the applicant ’ s conditions in Pula Prison, including copies of all the applicant ’ s submissions to any State authority about the conditions of his detention as well as replies in that connection.